An Inquiry into the Standard of Substantive Patent Law Infringement in Cross-Border Constellations

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This work investigates the challenges of enforcement of patent rights in geographically divisible inventions. It considers aspects of technological progress which pose challenges to the established system of patent protection based on the territorial limitation of rights. The analysis focuses on substantive patent law, especially on the infringement provisions. It is carried out in the context of Internet-related inventions, which demonstrate an extraordinarily construed technical nature, namely geographical divisibility. This leads to the inquiry of whether the infringement standard is appropriate in relation to the technological development in ICTs.

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The research question has two parts. First, it asks to what extent territorially limited patent law provides protection against infringement to holders of patents on geographically divisible inventions. Consideration of the importance of enforcement mechanisms in patent law together with the observation that such type of inventions is only technically feasible on a large-scale due to a technological shift brought about by the establishment and expansion of the Internet, leads to the development of this part of the research question. The focus is on how infringement provisions are applied in the substantive enforcement of patent rights in geographically divisible inventions. Remotely integrated inventions acutely challenge the current patent system. This is due to the fact that patent enforcement in cases involving geographically divisible inventions could be impossible. The capability of the inventions of operating when their components are located in different locations – and thus potentially – different jurisdictions implies that the operation of one single allegedly infringing device may involve at least two territories of two sovereign states, where independent patent rights, covering the whole invention, have been issued. The very substance of territorial rights is challenged by placing an invention – or the allegedly infringing device178 – across borders. The territoriality principle dictates a rule in substantive patent law, which states that a direct infringement only occurs when all elements of the patent claim are infringed. With some elements dislocated from the territory of the state, the all elements rule cannot be satisfied and thus, a wide window for infringement opportunities, which...

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